September 04, 2026|Product Liability Insider
By Anne Marie Ellis and Christopher Van Gundy
Published by Law360, August 31, 2026
When Texas Attorney General Ken Paxton announced an industrywide investigation into protein powder manufacturers on
June 8, most of the coverage treated it as a story about supplements.
But this is also a story of the influence of California’s Proposition 65 — with its over 1,000 listed chemicals, safe harbor levels and
consumer warnings — and how it may shape the enforcement and regulation of chemicals in food in other states.
The announcement of the Texas investigation cited heavy-metal testing by Consumer Reports and the Clean Label Project, and noted that the latter group’s tests found that 47% of protein powders tested exceeded Prop 65 limits for toxic heavy metals in a single serving. [1]
For companies that have traditionally treated Prop 65 as a California labeling issue, the Texas investigation should be a wake-up call.
While the Texas investigation is not publicly tied to any particular Prop 65 enforcement matter, it highlights how the same kinds of contaminant testing and chemical compliance issues that have long been the focus of Prop 65 can surface in investigations and litigation outside of California.
The question is no longer just whether the company used the right warning. It is what the company’s Prop 65 file — including its testing, supplier communications, reformulation decisions and marketing claims — may be viewed by state or federal regulators, or potential litigants.”
The Texas Hook
The Texas investigation follows an increasingly familiar pattern: Public testing identifies a contaminant, the products are marketed to health-conscious or potentially vulnerable consumers, and regulators begin asking what the industry knew and what it did about it.
Texas has taken a similar approach in other recent matters involving energy drinks marketed to younger consumers[2] and glyphosate residues in food.[3]
In Texas and other states, the broader enforcement and litigation landscape includes heavy metals in baby food, fluoride in children’s toothpaste, artificial dyes in cereal, per- and polyfluoroalkyl substances in household goods and activewear, and talc-based baby powder.
Many of those matters have a Prop 65 counterpart. That is not a coincidence.
Prop 65 has created a detailed public record showing which chemicals have been found in particular products, how companies have responded, and what testing or reformulation measures their competitors have agreed to undertake.
The Prop 65 Record Regulators and Plaintiffs Are Using
Prop 65 has created what amounts to a public enforcement library organized by chemical and product category.
As a result, regulators and plaintiffs no longer have to start from scratch. They can look at years of notices, settlements, testing protocols and reformulation commitments, and use that record as a road map.
Heavy Metals in Food and Supplements
The Prop 65 safe harbor levels for lead and cadmium have played a central role in consent judgements obtained by private enforcers.
Settlements involving chocolate, protein powders, greens powders, spirulina and herbal supplements, which are reviewed by the California Attorney General’s office, have included reformulation commitments, supplier controls and ongoing testing requirements.
Those agreements give regulators and plaintiffs a ready-made set of benchmarks. When an attorney general asks what contaminant levels, testing protocols or supplier controls are achievable in an industry, published California consent judgements are an obvious place to start.
Baby Food and Children’s Products
Prop 65 notices, settlements and consent judgements involving lead, cadmium and inorganic arsenic in baby food and infant cereals helped build substantial public record.
The record grew following a 2021 report from the U.S. House Subcommittee on Economic and Consumer Policy, and became part of the background to litigation involving alleged heavy metals in baby food.[1]
Acrylamide
The litigation in Council for Education and Research on Toxics v. Starbucks Corp., and the resulting coffee regulation from California’s Office of Environmental Health Hazard Assessment, which administers Prop 65, remain central to the treatment of acrylamide exposures in cooked foods.
The applicable published appellate decision is Council for Education & Research on Toxics v. Starbucks Corp., issued by California Court of Appeal in 2022.
Prop 65 notices continue to target acrylamide in cereals, snacks, fried foods and ready-to-eat products. The “no significant risk level” for acrylamide is 0.2 micrograms per day.
Over time, these matters have generated a substantial body of testing data, exposure analyses and settlement terms that can be used in later regulatory investigations and civil litigation.
Per- and Polyfluoroalkyl Substances
PFAS increasingly look like the next major prop 65 battleground. California listed perfluorooctanoic acid as a carcinogen in 2017 and as a reproductive toxicant in 2021, and listed perfluorooctane sulfonate as a carcinogen in 2023.
Since then, private enforcers have issued notices involving cookware, food packaging, cosmetics, dental floss, apparel, outdoor gear and personal care products. And in April, Texas announced an investigation into Lululemon Athletica Inc. over whether its apparel contains PFAS.[4]
The resulting settlements are increasingly about more than warnings. They may require supplier certifications, restrictions on intentionally added PFAS, and analytical testing.
Those are exactly the kinds of records an attorney general is likely to request when trying to understand what a company knew and how it responded.
Bisphenols, Phthalates and Titanium Dioxide
Bisphenol A, diethylhexyl phthalate, diisononyl phthalate and titanium dioxide have each generated their own lines of Prop 65 notices and settlements.
Over time, those matters create a product-specific record of testing results, supplier obligations, warning decisions and reformulation measures. That record may not stay confined to the original California case.
Glyphosate
Although the Prop 65 warning requirement for glyphosate was enjoined by the U.S. Court of Appeals for the Ninth Circuit in 2023, in National Association of Wheat Growers v. Bonta and subsequent proceedings, the listing remains.
The testing and litigation record involving glyphosate residues in oats, cereals and other foods continues to provide material for investigations outside the Prop 65 context, and undoubtedly played an important role in raising public awareness of, and providing the factual content for, the ensuing and still ongoing Roundup litigation.
Why a Prop 65 Warning Is No Longer the End of the Analysis
A compliant Prop 65 warning may resolve the California warning issue. But it does not necessarily answer an attorney general’s questions about whether contaminant levels are consistent with the way the product is marketed.
It also does not resolve questions under U.S. Food and Drug Administration standards, which may use different thresholds and apply a different regulatory framework.
The warning itself can become part of the case. Plaintiffs and regulators may argue that it shows the company knew the chemical was present.
The next question is predictable: Why did the company warn instead of reformulating, changing suppliers, conducting additional testing or revisiting its marketing?
Consent judgment thresholds can create the same problem. A company may view a settlement threshold as a negotiated compliance measure. A regulator or plaintiff may point to it as evidence that the industry has already accepted that level as achievable.
Companies with chemicals in products above safe-harbor levels benchmarked in a consent judgment — even outside California — should expect to be asked why.
That does not necessarily mean warning is always the wrong choice. But it means the company should be able to explain how it considered the available options, and why it chose a particular approach.
Ideally, the documents should tell that story without the company having to reconstruct it years later.
What Companies Should Do Now
The practical goal is to build a defensible record before a 60-day notice, civil investigative demand or class action arrives.
Look at the Prop 65 file as a national risk document.
Gather the company’s recent 60-day notices, consent judgements, testing records and current warnings.
For each matter, identify the chemical involved, the testing that informed the response, and whether the company warned, reformulated, changed suppliers, discontinued the product or used some combination of those options. Pay particular attention to products sold outside California without warning.
Assume the file may eventually be produced in an attorney general investigation or class action. The goal is to understand now whether the record tells a consistent and defensible story.
Know the published settlement benchmarks.
For chemicals relevant to the company’s products – including lead, cadmium, arsenic, acrylamide, PFAS, phthalates and BPA – review published consent judgements involving comparable products.
Testing only against the Prop 65 safe harbor may not be enough if competitors have agreed to lower settlement thresholds or more demanding testing protocols.
Those settlements do not necessarily establish a binding industry standard. But regulators and plaintiffs may still point to them as evidence of what other companies have been able – or willing – to achieve.
Reconcile the different standards.
Maintain an internal specification that identifies the relevant Prop 65 safe harbor, FDA action or guidance level, and any applicable international standard. The document should state the company’s chosen specification and explain the reasoning behind it.
A thoughtful, contemporaneous decision is much easier to defend than an explanation assembled after an investigation has already begun.
Look beyond certifcates of analysis.
Supplier qualification should address the contaminants associated with the particular product and its ingredients. Contracts should include appropriate specifications, audit rights and verification requirements.
PFAS controls may require restrictions on intentionally added substances as well as analytical testing. Heavy-metal controls may need to account for ingredient origin, botanical source, processing and water supply.
A generic certificate of analysis may not answer the questions regulators will ask.
Review marketing and testing together.
Claims such as “clean,” “pure,” “safe” or family-friendly should not be approved without input from the people who understand the testing data.
The newly filed protein powder case in Texas discussed above illustrates the point. The allegations focus not only on the claimed presence of heavy metals, but also on whether “clean” and similar product messaging was misleading without a corresponding disclosure.
In many consumer-protection investigations, the issue is not simply that a trace contaminant was present. It is the gap between what the company knew internally and what it told consumers. Marketing and quality assurance cannot operate in separate lanes.
Keep an eye on third-party sales channels.
Influencers, affiliates, online marketplaces and retailers may make claims that create risk for the brand.
Claim-substantiation controls should cover significant third-party representations from which company benefits, not just content appearing on company-owned platforms.
Do not treat every 60-day notice as a warn-and-settle exercise.
A notice should prompt a broader review of testing , reformulation, supplier changes, labeling and possible discontinuation. The company should document the alternatives it considered and why it selected a particular response.
In a later investigation, a record showing that the company seriously evaluated the issue will be far more useful than a warning added without any documented explanation.
Establish a contaminent escalation process.
Out-of-specification results, testing variances, supplier nonconformances and relevant consumer complaints should be escalated through a defined process.
Regulators do not expect companies to prevent every variance or testing issue. They do expect to see that someone noticed the issue, evaluated it and made a reasoned decision about what to do next.
Takeaways
The Texas investigation is not developing in isolation.
Companies should not just treat a Prop 65 matter as a closed California labeling exercise. Testing data, supplier records, settlement terms, marketing claims and warning decisions may be among the first documents reviewed in the next investigation or class action.
Companies that approach those records deliberately – by reconciling applicable standards, connecting marketing with quality assurance and documenting warning and reformulation decisions – will be in a much better position to explain what they did and why.
To view the full article as published by Law360, click here.*
*Subscription Required
